Really, there is no contest.
The IP Section of the Colorado Bar Association, in conjunction with Silicon Flatirons hosted a debate between representatives from the Obama and McCain campaigns today in Denver. Jonathan Alter, a columnist and editor for Newsweek moderated the discussion between attorneys Ed Reines and Ray Gifford representing the McCain campaign and professors Christopher Sprigman and Arti Rai representing the Obama campaign.
The luncheon was well done. Each participant was well prepared, knowledgeable, and articulate on the current issues regarding patents and copyrights. All the participants agreed on the same underlying principle: intellectual property rights are important and should be protected. In general, both sides agreed on the general goal of more rigorous patent examination that would, in theory, result in stronger patents.
While several issues such as patentable subject matter, the makeup of the Federal Circuit, and appointment of PTO management were brought up, solid answers were not forthcoming, but the general recognition of the importance in IP protection and its role in the economy was emphasized.
The questions raised by the audience, and the representative’s responses, reiterated the importance of patent rights for the independent inventor, bio-pharma, and venture capital startup businesses.
The Obama camp has a patent reform proposal, which is discussed by PatentHawk and PatentlyO. Some of the ideas were lightly discussed at the luncheon, but not thoroughly.
Personally, I think that some of the “reform” ideas that have been floated around, such as the “gold plated” patent and other options are mere gimmicks that do not address the fundamental problem. The fundamental problem is not glamorous nor are fixes to the problem. Glamor is more politically expedient, I guess.
The “problem” is that patents being issued today do not generate the confidence and respect in the public that, as a matter of public policy, one would expect. The bad press and attacks on patents in general have eroded confidence in all patents. An inventor who obtains a patent cannot enjoy as much of the benefits of the patent as public policy would dictate.
The “solution,” which is almost universally touted, is to improve patent quality. Patents should be issued for inventions which are new, useful, and fully disclosed. Inventions that do not meet all three requirements should not be issued. Seems pretty simple, but the execution of the solution is down and dirty and decidedly not glamorous.
Since we are in an election year, there seems to be a desire to propose all sorts of silver bullet “solutions” to a supposed “problem.” In the Obama suggestion of a “gold plated patent,” there would be a system where there would be two classes of patents, a “gold plated patent” and a second-class patent. I cannot imagine any situation where I would advise a client not to choose the “gold plated” option, meaning that every patent application would go into the “gold plated” queue and the PTO backlog would only be worse, presuming that the “gold plated” process took even more Examiner time. In the end, what is gained? A gimmick that does the opposite of what was intended.
The argument for the “gold plated” patent is that some patents, such as a goofy new mousetrap for an independent inventor is somehow less important than a new cancer drug for Big Pharma. For the independent inventor, the goofy new mousetrap could well be the keystone to launching a business and it deserves the same thorough examination that the new cancer drug should receive.
From my standpoint, the silver bullet gimmicks, programs, and other “solutions” seem to be a great way to have something to propose and talk about, but it makes life more complicated in the long run. Complexity adds cost and uncertainty, which adds more cost and less perceived value. Simplicity may be a better, but decidedly unglamorous route to take. It is a shame that simplicity and streamlining are not politically expedient.
However, I was glad to know that advisers to both candidates had a firm grasp of the issues and fundamentally agreed that strong Intellectual Property rights would be good for the country as a matter of policy. I left the luncheon feeling like both sides had much more agreement than disagreement. Professor Sprigman pointed out that even though there will be a lively debate as to the implementation details, everyone on the podium had the same basic goal. His point was that both sides are in much more agreement than disagreement.
